Omer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1108
•8 September 2021
FEDERAL COURT OF AUSTRALIA
Omer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1108
Appeal from: Application for an extension of time: Omer v Minister for Immigration & Anor [2020] FCCA 3493 File number: NSD 24 of 2021 Judgment of: NICHOLAS J Date of judgment: 8 September 2021 Catchwords: MIGRATION – application for leave to appeal judgment dismissing application for judicial review pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether judgment at first instance attended by sufficient doubt to warrant reconsideration on appeal – where no reason to doubt the correctness of the primary judge’s judgment – application for leave to appeal dismissed Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12
Migration Regulations 1994 (Cth) cll 186.223, 186.233 and 186.242
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 17 Date of hearing: 8 September 2021 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms D Stone of Sparke Helmore Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 24 of 2021 BETWEEN: MOHAMMED OMER
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
8 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs of the appeal fixed in the amount of $4000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)NICHOLAS J:
Before me is an application for an extension of time to apply for leave to appeal against an order of a judge of the Federal Circuit Court of Australia (“the FCCA”) to dismiss an application for judicial review pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). Leave to appeal is necessary because the primary judge’s order dismissing the proceeding pursuant to r 44.12 was interlocutory. However, the first respondent (“the Minister”) accepts that the application for leave to appeal was filed within time and that no extension of time to seek leave is required. I will therefore treat the application for an extension of time as an application for leave to appeal filed in time.
Rule 44.12 relevantly provides:
44.12 Show cause hearing
(1)At a hearing of an application for an order to show cause, the Court may:
(a)if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
…
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.
The primary judge found that the application filed by the applicant in the FCCA did not raise any arguable case for the relief claimed.
The application for leave to appeal is to be determined in light of the principles referred to in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. Whether leave to appeal should be granted typically involves the following considerations:
·whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration on appeal; and
·whether a substantial injustice would result if leave were refused, supposing the decision to be wrong.
In the present case I would grant the applicant leave to appeal if I considered that his proposed appeal had any reasonable prospect of success. However, for reasons which follow, I do not think it does. Leave to appeal will be refused on that basis.
The applicant is a citizen of India who applied for an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa (“the visa”) on 7 April 2016. The visa application was made on the basis of a nomination by Ahmer Arif Ismail trading as Python Technologies in respect of the position of ICT Business Development Manager.
On 28 November 2017, a Delegate of the Minister refused the applicant’s visa application on the basis that the applicant was unable to satisfy cl 186.223(2) to Sch 2 of the Migration Regulations 1994 (Cth). Clause 186.223 (as it then stood) provided:
186.223
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b)in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and
(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The Minister has approved the nomination.
(3) The nomination has not subsequently been withdrawn.
(3A) Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(4) The position is still available to the applicant.
(5)The application for the visa is made no more than 6 months after the Minister approved the nomination.
The Delegate found that the requirements of cl 186.223 were not met because the Minister had not approved the relevant nomination.
The Delegate also considered whether the applicant met the criteria under the “direct entry stream” and the “agreement stream”. The Delegate found that visa criteria under cl 186.233 and 186.242 were also not satisfied because there was no relevant nomination and approval under the Regulations as they stood before 1 July 2012 (cl 186.233) and because there was no nomination in accordance with a Labour Agreement (cl 186.242).
The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the Delegate’s decision.
By its decision of 5 June 2020 the Tribunal confirmed the Delegate’s decision to refuse the applicant’s visa application. The Tribunal noted that the relevant nomination was refused on 24 October 2017 and that this decision was affirmed by the Tribunal on 19 March 2020. The Tribunal found at [17]-[19] of its reasons:
17.The Tribunal has considered the written and oral submissions of the applicant. On the evidence before it the Tribunal finds that the relevant nomination by Ahmer Arif Ismail, the subject of the declaration when the applicant’s visa application was made, has not been approved. This is an essential requirement for the grant of the visa that the applicant is seeking. It therefore follows that the applicant has not met cl. 186.223(2) and cl. 186.223 of Schedule 2 to the Regulations is not met as a whole.
18.It also appears on the evidence before the Tribunal that the nominated position the subject of the visa application is no longer available to the applicant as his employer has closed the business.
19.The Tribunal accepts the evidence of the applicant that he had previously worked for several years for his nominating employer and that he had invested considerable time and planning in the prospect of a permanent visa and life in Australia for himself and his family. The Tribunal accepts that the decision of the nominator to cease conducting the business was outside the control of the applicant, but this is not a matter in which the Tribunal has any discretion.
It is apparent from the Tribunal’s reasons that the applicant confirmed at the hearing of his application for review that he was aware that the Minister’s decision not to approve the relevant nomination was affirmed by the Tribunal on 19 March 2020.
In those circumstances it was open to the Tribunal to find that the applicant could not satisfy the relevant visa requirements. Indeed, it is impossible to see how the Tribunal could have come to any other rational conclusion on the material before it.
The applicant’s draft notice of appeal invites merits review of the decision not to grant him the visa. It also refers to the fact that, at the date of filing of the draft notice of appeal, the applicant had not yet received a copy of the primary judge’s reasons for judgment. It appears that the primary judge’s reasons for judgment were delivered ex tempore on 21 December 2020 (the date on which the order for dismissal was made) and that a written copy of his Honour’s reasons was provided to the applicant on 11 February 2021. The applicant has had ample opportunity to consider the primary judge’s reasons for judgment in written form and to make any necessary amendments to his proposed notice of appeal.
The real difficulty for the applicant is that his visa application could not succeed in circumstances where there was not an approved nomination. In some oral submissions made by the applicant before me today the applicant addressed the merits of his circumstances but did not grapple with this difficulty.
In my opinion, there is no reason to doubt the correctness of the primary judge’s decision. In my view the applicant’s proposed appeal has no prospects of success.
The application will be dismissed. The applicant must pay the Minister’s costs of the application which I will fix in the amount of $4000.
Orders accordingly.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 10 September 2021
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